87 Mo. 285 | Mo. | 1885
Lead Opinion
This is an action by which plaintiff seeks to recover damages for an injury which he-sustained, alleged to have been occasioned by the negligence and incompetency of George Dawson, a section foreman in the employment of defendant, who, it is charged, ignorantly, negligently and carelessly ordered plaintiff, a section hand in defendant’s employ, to go upon the railroad track and assist in removing from it a hand-car, when a train of cars was approaching and near at hand, the engine of which injured him, while so engaged. It is not clear whether the action is based upon the theory that Dawson and plaintiff were fellow servants or that Dawson was defendant’s vice-principal. The petition has a double aspect, but the cause was tried on the theory that plaintiff and Dawson were fellow servants, and we will consider the petition as sufficient to warrant a recovery, in either view.
For plaintiff the engineer on the train which 'injured him testified that the engine was not exceeding one hundred yards from plaintiff when he first saw him. That plaintiff then had hold of the hand car. As soon as witness saw him, he blew the whistle, and continued to blow it until the hand car was struck. He attempted to stop the train but could not.- The grade was a very steep down grade. He expected the men to get the hand car off the track. The train was running slow at the time. 'It was a regular train, and was on time. There was a pile of ties near the track, from four to six feet high, between ten and fifteen feet from the rail, and there was a ditch between the tie pile and the track.
The plaintiff testified that Goodman was the road master, and it was his duty and power to employ and discharge the foreman and work hands of defendant. That on the twenty-eighth of July they were engaged in raising and repairing the railroad track, and had a hand car on the track in the afternoon, between three and four o’ clock. At that time a freight train came along, and Dawson ordered the hands to take the hand car off of the track. There was a large load of strap and tools on the hand car. “We tried to obey the order, but one end of the hand car stuck in the ditch alongside the track, and prevented us. I think we would have got it off in time but for that. While I was trying to get if
Peter McGraffney, for plaintiff, testified substantially as plaintiff did, with respect to the accident. Tie also stated that being caught on the track by trains was nearly a daily occurrence. That the pile óf. ties was from six to eight feet from the track. That the "next day after the accident a regular daily train had to check up to let them get a hand car off of the track. That when witness was foreman for defendant a rule required hand cars to be taken from the track ten minutes before a train was due.
Samuel Craighead, for plaintiff, testified that he worked under Dawson in 1874 and 1875. Dawson was a weaver by trade before he went on the railroad. “Don’t think he was competent to have charge of a section. He ran a great many risks. Has run his car against trains. Would run his hand car on train time, and had one car broken up before the one in question. Don’t know that Dawson was ever discharged by defendant.” On cross examination, he testified as follows: “I worked under Dawson eight or nine months. Don’t
Nicholas Quirk testified that he did not consider Dawson a reliable railroad man, because he had not experience. He had been a cotton spinner before he went to work on the railroad. When a section hand under witness, he discharged him for bad shoveling. Never saw him act as section foreman. His opinion of Dawson was formed in 1869, and he never saw Dawson at work after that time, more than four years before plaintiff was injured. Defendant introduced evidence tending to prove that Dawson was a competent and good section foreman — as good as any on the road.
The court, for plaintiff, gave four instructions, and, ■of its own motion, three, and refused seven asked by defendant. Plaintiff’s first was to the effect, that if the jury found that plaintiff was injured, while acting in
This criticism, however, is based upon that aspect of the petition which presents the plaintiff and Dawson as fellow servants. In the other, in which the section foreman appears as the alter ego of the company, the latter is liable, whether the incompetency and carelessness of Dawson was known to the defendant or not, if plaintiff was ignorant of such incompetency and careless habits. Following the decision in the case of Moore v. The Wabash Ry. Co., 85 Mo. 588, and re-affirming the doctrine of that case, we must hold that plaintiff and Dawson, on the allegations and proof, were not fellow ser-.
The second instruction declared that the road master’s knowledge of Dawson’s incompetency and careless habits, was to be imputed to the defendant. This is-a correct declaration of the law, and properly given, upon the theory that Dawson and plaintiff were fellow servants, and in the other aspect of the case, was an. unnecessary and harmless declaration of a correct abstract proposition.
The third instruction declared that what plaintiff did,- in obedience- to the order of Dawson, was not to be imputed to him as negligence.^ This is objectionable. It withdrew from the jury the question of plaintiff’s-contributory negligence, and assumed and determined that plaintiff was not chargeable with contributory negligence. A servant is not, under all circumstances, and at all hazards, bound to obey the order of his master. Obedience to an order may so manifestly jeopardize the safety of the servant as not only to justify, but to demand his disobedience. No servant can voluntarily place himself in a position in which it is more than likely that he will be injured and recover damages from his master’, if he had time to deliberate, and with knowledge of the peril took the risk. Coombs v. New Bedford Co., 102 Mass. 572 ; Sullivan v. India Co., 113 Mass. 396.
The defendant’s first, second, fourth and fifth instructions were substantially embraced in the first given for plaintiff. The sixth declared that one. act of negligence would not justify a finding that Dawson was incompetent. Of this it is sufficient to say, that whether one act of negligence will establish incompetency, or not, depends upon the character of the act. It may be such as, per se, to prove incompetency. Baulec v. Ry. Co., 59 N. Y. 362. Besides, there was evidence tending
The seventh of defendant’s refused instructions dedared that if. plaintiff’s injuries were occasioned by the pile of ties near the ditch, and not by Dawson’s incompetency, the jury should find for defendant. This assumes that the only ground of recovery alleged in the petition was Dawson’s incompetency, whereas the cause of action alleged was the incompetency of Dawson, the recklessness of the order given by him, and the negligence of the company in permitting the pile of ties to remain near the track, all as concurring to produce the injury.
The defendant’s third instruction declared -that if plaintiff, before he was injured, knew that Dawson was incompetent, reckless and careless, and notwithstanding such knowledge, continued in defendant’s service, working under Dawson, without objection, he was not entitled to recover. That instruction on the theory that plaintiff and Dawson were fellow servants should have been given. The law, as therein declared with respect to fellow servants, is well settled. Dillon v. Union Pacific Ry. Co., 3 Dillon, 323; Devitt v. Pac. Ry. Co., 50 Mo. 302; Laning v. N. Y. Gent. Ry. Co., 49 N. Y. 521; Watling v. Oasiler, 6 L. R. Exch. 73; Keegan v. Kavanaugh, 62 Mo. 232; Wood on Master & Ser., secs. 422, 423; Davis v. Detroit & Milwaukee Ry. Co., 20 Mich. 125. In the latter case, Judge Cooley said : “If with knowledge of the recklessness of Harris, the plaintiff continued in the employ of defendants without complaint, did he not take upon himself all risk of injury from such recklessness, while in the ordinary performance of the services he had undertaken, as much so as if he had expressly contracted with reference to possible injury from such unfitness ? We think both these (questions must be answered in the affirmative.” . See, also,
Nor is it any answer to say that plaintiff here was not engaged in the ordinary service he had undertaken. That was a question for the jury. It is the ground of plaintiff’s complaint that the order given was negligent g,nd rash. This was denied by the answer. If the order Was not a reckless one, but such as a prudent and competent foreman would have given under the circuin- § {pnces, then what plaintiff was ordered to do was within the line of his employment, and the court could not have given plaintiff’s third instruction, unless justified |n the assumption that the order given by Dawson was recklessly or negligently given, or given because ignorant and unfit for his position. If Dawson was reckless, careless or incompetent, and plaintiff knew it before, he was injured, and yet, without objection or complaint, continued to work for the company, that he cannot recover, if they were fellow servants, is a doctrine so well established, so elementary, that it will not be controverted by any one; but the suggestion is made that it is inapplicable when the negligence complained of is not that of a fellow servant, but of a vice-principal. It is asserted by all the law writers on the subject, and in numerous adjudications, that if the servant is aware that the machinery, or other instrumentalities furnished by the master, are defective, and the servant is injured in consequence of such defect, he cannot recover for such injury. £< The term, instrumentalities,” says Mr. Wood, in his work on Master and Servant, section 394, ££ embraces, not only machinery, premises and all the implements, of every kind, but also the persons employed to operate them. It is.the duty of the master, to look out for the safety of his servant, so far as ordinary prudence can secure it, in all these respects.”
If the servant is aware of a defect in machinery which ho is employed to work with, and is injured in
It is true that the negligence of a vice-principal is, in law, the negligence of the master. So is the neglect to furnish suitable implements and machinery; yet, if the servant is aware that the machinery is defective, and. is injured in consequence of a defect of which he had knowledge, he cannot recover of the master damages for such injury. What reason can there be for ,, excusing the master’s negligence in such a case, that does not apply, with equal force, to the case of a servant injured by the carelessness of a vice-principal, or alter ego of the master 2 If he knew that the carelessness or incom
With regard to the testimony admitted, that Goodwin said to Craighead that “Dawson was not a good, railroad man,” the admissibility of the declarations of an agent against his principal can, on principle, be maintained, only where what the agent said was in the transaction of the business of his principal and was a part of the transaction itself. But conceding, and it is an exceptional case, that what Goodwin said to Craighead was-admissible to prove that the company had notice of the fact of Dawson’s incapacity, if that fact was established by other evidence, or there was other evidence tending to establish it, yet Goodwin’s statement was inadmissible to prove the fact that Dawson was incompetent. A first-impression of the distinction is that it is shadowy and unsubstantial, and so it struck me, but, on reflection, it will be found to be real, and it is recognized ‘by high authority. In Chapman v. The Erie Ry. Co., 55 N. Y. 584, the defendant’s responsibility was sought to be' established by proof that one Allison, a telegrapher,,
If one were offered to testify that he heard another inform the superintendent of facts, showing the in..competency of an employe, it would be admissible as .showing that the superintendent had knowledge of those facts, if the facts themselves toere otherwise proved, but .it would certainly be inadmissible to prove those facts. It would be but hearsay evidence as to the existence of the facts. It is upon the same principle that the admission of an agent of his knowledge of facts is competent to prove his knowledge of the facts, if the existence
In the case we are considering, the defendant’s objection was, that the evidence was inadmissible, for any purpose, but being inadmissible to prove Dawson’s incapacity, the court admitting it for the other purpose, should have told the jury that they could only consider it as evidence tending to prove notice to the company of Dawson’s incompetency, if such incompetency was established by other testimony, but not to consider it, either by itself or in connection with other testimony, as evidence of the fact that Dawson was incompetent. It was especially proper in this case that such an admonition should be given. Without reviewing the evidence on the subject, we may say that a jury might not have found that Dawson was incompetent, if they had been instructed as to the proper effect to be given to this testimony of Craighead. It is true, that even with such instruction, the jury might, have found that Dawson was incompetent, and that such finding would not have been disturbed, either by this or the trial court, but as we cannot say that their finding would have been the same, we must hold that the error was material.
It is also strenuously contended that defendant’s demurrer to the evidence should have been sustained on the ground, that, conceding the order given by Dawson to have been reckless, etc., still plaintiff would not have been injured if the car wheels had not stuck in. the mud of the ditch, and cases are cited bearing some' analogy to this in which it was held that the complainant could not recover ; but I apprehend that in all of them it will be found that the negligence complained of was disconnected, in point of time, with the subsequent co-operating cause of the injury. As in Morrison v. Davis & Co.,
This cause was once before in this court on defendant’s appeal, and is reported in 73 Mo. 518, and, as for the errors above noted, the judgment will be reversed and the cause remanded, we have deemed it necessary to notice all the points presented so that the next may ',be a final trial of the cause. We are not prepared to ;say that the petition is defective, but think it better pleading to state the precise cause of action relied upon. If it is sought to charge the company for negligence of .a fellow servant) as contradistinguished from a vice-principal, let that be stated in one count. If plaintiff seeks to recover for the negligence of the company itself, ■or its vice-principal, let that be stated in a separate count ; but blending the two in one count and trying the cause on both together, without distinguishing between •them in the instructions to the jury, tends to confuse them, and has given us no little trouble.
The judgment is reversed and the cause remanded.
Concurrence Opinion
Concurring. — While agreeing to the ■conclusion reached in this case, I do not concur in so much of the opinion as announces the doctrine that an ■employe operating and under the control of an incompetent vice-principal, who sustains an injury occasioned by the negligence of such vice-principal, cannot recover for suck injury, if he had knowledge of such incompetency, .and made no complaint to the company. I know of no .authority recognizing the doctrine.